Affiliate Agreement Terms & Conditions
By participating in this marketing launch ("Promotion") conducted by Creating Customers, LLC ("Company") during the months of June 28, 2011 and July 24, 2011 ("Promotion Period"), you ("Affiliate") agree to the following Terms and Conditions ("Agreement”) for promoting our “Getting Your Business Unstuck” coaching program (Product).
Affiliate must be 18 years or older to participate in Promotion. Company reserves the unconditional right to accept or deny any Affiliate who enters the Promotion on the Company’s website under the general domain of http://www.kenvarga.com (or, http://kenvarga.com ) ("Enrollment Site") or who drives traffic to the Company’s website.
Affiliate must be in good standing with the Federal Trade Commission (the "FTC"), and in compliance with all FTC guidelines and the terms and conditions of this Agreement.
Affiliate agrees and understands that if its marketing, websites, emails or any other communications associated with or for this Promotion are deemed inappropriate that Affiliate will be deemed, at the sole discretion of the Company, ineligible to participate in the Promotions and disqualified from receiving any recognition, commissions, prizes or any other compensation or further communication from the Company.
Affiliate will be immediately removed from this Promotion and from Company’s Affiliate Program and will be in violation of this Agreement if, at the sole discretion of the Company, its marketing for this Promotion or for its own sites:
a) contains, promotes or links to sexually explicit or violent material;
b) promotes, depicts or links to material that promotes or depicts discrimination based on race, gender, religion, national origin, physical or mental disability, sexual orientation, or age;
c) contains unlawful material, including but not limited to materials that may violate another’s intellectual property rights, or links to a site that contains such material;
d) contains information regarding, promotes or links to a site that provides information or promotes illegal activity; or
e) for any other reason that is deemed by us to be unsuitable by the Company.
Company reserves the right to disqualify Affiliates from our Affiliate program, cancel pending commissions based on inappropriate behavior or marketing by the Affiliate, and to amend this Promotion or Agreement at any time without notification to Affiliate.
SPAM AND UNSOLICITED EMAIL
Affiliate agrees NOT to send any unsolicited email to any party during the Promotion. Company has ZERO tolerance toward any Affiliate who spams any party or individual, period. If Affiliate is caught spamming, they will be removed from the Company’s Affiliate Program, and their commissions or pending commissions will be canceled and/or forfeited. Spam is defined as emailing or posting to anyone who has not requested information via email or any website, and also includes "spamming search engines" with links. Affiliate agrees to abide by all Federal Trade Commission Guidelines and the U.S. Federal Can-SPAM Act.
We’ve taken every effort to ensure we accurately represent our Promotion and its potential to help you earn commissions, as described below. However, there is no guarantee that you will get any results or earn any money whatsoever during this Promotion, and we do not purport this as a "get-rich scheme." Nothing on our Sites or in this Promotion is a promise or guarantee of earnings. Your level of success in attaining results is dependent upon a number of factors including your skill, knowledge, ability, dedication, business savvy, network, list, and financial situation. Because these factors differ according to individuals, we cannot guarantee your success, income level, or ability to earn revenue. You alone are responsible for your actions and results in life and business. Any forward-looking statements outlined on our sites or in our Promotions are simply our expectations or forecasts for future potential, and thus are not guarantees or promises for actual performance. These statements are simply our opinion. As stipulated by FTC law, we make no guarantees that you will achieve any results from our ideas or Promotion and we offer no professional legal or financial advice.
Affiliate will receive 35% commission for every sale of the Product during the Promotion Period that is directly referred by the Affiliate to the Company’s Site through the Affiliate’s unique link or cookie. This ONLY includes sales that are driven from the Affiliate to the Company’s sales sites and as tracked through the Affiliate’s unique link provided by the Company or the cookie resulting from that link.
Commissions are not paid on, and will not include, any sale to the Affiliate themselves, meaning Affiliate cannot purchase the Product for their own use through their link and receive a commission on that sale. Affiliate commissions are counted and final numbers are deemed final at the sole discretion and decision of the Company.
Commission payments will be sent to Affiliate by the Company via PayPal once every 30-45 days following the Promotion Period until the Affiliate has been paid in full. Because multiple monthly payments are allowed by customers who purchase the Product, Affiliate should expect to receive approximately 50% of each collected monthly payment every 30-45 days until the customer has paid the Company in full for the Product. If a sale is canceled or refunded for any reason, any paid commission will be deducted from the amount owed to the Affiliate on any subsequent payment. Affiliate commissions will not be paid based on any sales or amounts that are attributed to spam, credit card fraud, or returned Product. Company reserves the right to change the dates of the commission payout. Affiliates must complete the W-9 and any tax information sent by the Company before receiving any commission payments.
Company is NOT responsible for Affiliate using or maintaining their affiliate links and only sales tracked through the Company’s system will count towards the Affiliates commissions. All sales and commission numbers are tallied by the Company and credit due to the Affiliate and all the final sales and commission numbers are at the sole discretion of the Company. Company makes every reasonable effort to accurately track and pay commissions for all sales that come from Affiliates, but it not responsible nor under any circumstances will be held liable for any technical difficulties, outside events, actions by other affiliates, or other uncontrollable events that may disrupt or interfere with Company’s ability to track sales or pay commissions. Under no circumstances will Company be held liable for any indirect, incidental, special or consequential damages or any loss of revenue or profits that result from Affiliate’s participation in this Promotion.
Affiliate will not receive any commission or revenue on clients driven to the Promotion or Company following the Promotion Period. Commissions are solely available for this Promotion under this Agreement.
Affiliate may not use ANY copyright, trademark, service mark, or general branding of the Company without full discloser and permission of the Company.
Affiliate may not: a) read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Company by any person or entity; b) take any action that could reasonably cause any customer confusion as to Affiliate’s relationship with Company, or, c) frame the Affiliate’s website to look like the Company’s website or to utilize the Company’s branding in any way that would confuse customers or the general public as to who is hosting or promoting such a website.
RELATIONSHIP OF PARTIES
Nothing in this Agreement shall be deemed to create a partnership, joint venture, agency relationship, or employment relationship between the Parties. Affiliate is participating in the Promotion as a fully independent entity and is responsible for any and all federal, state, local, and/or foreign income taxes and self-employment taxes, and any and all other federal, state, and local licensees, fees or taxes, or sales tax, including withholding taxes, social security taxes, and public liability and workman’s compensation insurance. Under no circumstances will Company be held liable for any actions or results of the Affiliate.
Affiliate hereby agrees not to share, use, copy, adapt, alter, distribute, duplicate, or part with possession of any of the Company’s confidential information which is not directly provided or approved by the Company, or any confidential information that is disclosed or otherwise comes into its possession under or in relation to this Agreement. Confidential information includes, but is not limited to, the following types of private information and other proprietary information of a similar nature regarding the Company’s business: sales figures, software passwords, Company list size, list contents, ideas, stories, activities, curriculum, seminar format, presentation materials, presentation content, inventions, financial information, business plans, business processes, marketing plans, marketing strategies, marketing copy, financial projections, customer lists, customer financial information, personal information of executives, sponsorship strategies, relationships with other vendors, media delivery concepts and systems, including, but not limited to, web-based delivery systems, technical data, software designs, drawings, specifications, models, source code, object code, documentation, diagrams, flow charts, and other similar information that is proprietary to and confidential information of the Company.
This Agreement imposes no obligation of confidentiality on Affiliate with regard to any portion of Company’s confidential information (a) that is part of the public domain at the time of disclosure; or (b) that becomes part of the public domain after the Promotion without any unauthorized act by or omission of Affiliate; or (c) if Affiliate can demonstrate by written records that he/she had independently developed knowledge of such confidential information prior to the date of disclosure; or (d) if permission to use or disclose said confidential information is first obtained by Affiliate in writing from Company; or (e) if Affiliate is required by law, regulation, rule, act, or order of any court or other government authority or agency to disclose such confidential information. In general, Affiliate may not disclose any financial, personal, or business information about the Company or its executives (including Founder Brendon Burchard) without permission from the Company. Such disclosure is grounds for legal action, equitable relief, and termination of this Agreement.
INDEMNIFICATION AND LIABILITY
Affiliate agrees to indemnify and hold harmless the Company and the Company’s Founders, Reginald E. Niles and Kenneth J. Varga, individuals, from and against any and all losses, claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorney fees) which Affiliate may be subject to or incur in connection with the Promotion to be rendered, except those claims that are judicially determined to have resulted from Company’s gross negligence or willful misconduct. Under no circumstances will Company or its Founders or their assigns be held liable for Affiliate’s injury or death or any loss or damage of personal belongings or earnings resulting from its providing of the Promotion or from Affiliate’s participation in any of its promotions, seminars, or live events (“Events”) should the Affiliate attend them. Affiliate hereby accepts all risk to its health including injury or death that may result from participating in any Company Events and hereby releases Company, Reginald E. Niles, Kenneth J. Varga, and their officers, employees, interns, Affiliates, sponsors and representatives from any and all liability to his or herself and their personal representatives, estate, heirs, next of kin, and assigns for any and all claims and causes of action for loss of or damage to Affiliate’s property and for any and all illness or injury to Affiliate’s person, including death, that may result from or occur during Affiliate’s participation at the Events, whether caused by negligence of the Company or its representatives. Affiliate acknowledges and agrees to be financially responsible for any medical or legal bills that may be incurred as a result of participation in the Promotion or Events including any financial loss or emergency medical treatment. Affiliate understands that Company does not give legal or financial advice and under no circumstances will be held liable for results related to the Promotion or Events.
The relationship between the Parties may be terminated by either party on 30 days written notice prior to termination. Upon termination, it is understood that the Confidentiality and Indemnification clauses above will remain in effect for perpetuity.
ENTIRE UNDERSTANDING AND DISPUTE
This Agreement constitutes the entire understanding of the Parties and may be modified only by the Company. This Agreement shall be construed and interpreted according to the laws of the State of California in the United States of America and shall be binding upon the parties hereto, their heirs, successors, assigns, and personal representatives; and references to the Company and to the Affiliate shall include their heirs, successors, assigns, and personal representatives. In the event of a dispute between the Parties regarding this Agreement, any such disputes, controversies and claims arising out of or relating to this Agreement, it shall be settled and determined by arbitration. The rules governing this arbitration shall be according to the American Arbitration Association (AAA) and any arbitration needed will be conducted in San Jose, California. The parties further agree that the arbitration shall be conducted before a three panel arbitration board wherein each party to this agreement selects one arbitrator and those selected arbitrators select a third arbitrator. The decision of the arbitration shall be final and each party agrees to be bound by the arbitration board.
If any provision or covenant, or part thereof, of this Agreement should be held by any court or other legitimate tribunal with appropriate jurisdiction to be invalid, illegal or unenforceable, either in whole or in part, such invalidity, illegality or un-enforceability shall not affect the validity, legality or enforceability of the remaining provisions or covenants, or any part thereof, of this Agreement, all of which shall remain in full force and effect.
Company may be contacted at email@example.com, or:
Creating Customers, LLC
1192 Lenark Ct.
San Jose, CA 95132